Court name
Supreme Court of Zimbabwe
Case number
SC 23 of 2004
Civil Appeal 368 of 2002

Matambanadzo v Goven (68/02) (SC 23 of 2004, Civil Appeal 368 of 2002) [2004] ZWSC 23 (09 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 23













REPORTABLE
ZLR (16)





Judgment
No. SC 23/04


Civil
Appeal No. 368/02








JOSEPHINE
MATAMBANADZO v NATU LALA GOVEN








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & CHEDA JA


HARARE
MARCH 22 & MAY 10, 2004








J
B Colegrave
, for the
appellant





I
A Ahmed
, for the
respondent









SANDURA JA: This is an
appeal against a judgment of the High Court in terms of which the
appellant and all persons claiming
the right of occupation through
her were ordered to vacate Flat No. 6, Belgrave House, Aberdeen Road,
Avondale, Harare (“the property”).





The
relevant facts are as follows. In February 1999, the respondent
(“Goven”) purchased the property from the estate of the
late John
Harold West (“the deceased”). At the time of the purchase the
appellant (“Matambanadzo”) was in occupation of
the property as a
lessee in terms of an oral lease agreement concluded with the
deceased prior to his death. The lease agreement
was to expire on
30 June 1999.






Subsequently, on 26 March 1999
Goven’s legal practitioner gave Matambanadzo written notice to
vacate the property by the end of
June 1999, but Matambanadzo refused
to comply. As a result, Goven’s legal practitioner instituted a
civil action in the High
Court against Matambanadzo claiming,
inter
alia
, her eviction
from the property.






However,
after Matambanadzo’s legal practitioner had filed a special plea,
alleging that the High Court did not have the jurisdiction
to grant
the eviction order sought because no certificate had been issued by
the Rent Board, as required by s 30(4) of the Rent Regulations,
1982
(S.I. 626 of 1982) (“the Regulations”), the civil action was
withdrawn on 5 May 2000.





Thereafter,
Goven’s legal practitioner submitted a written application for the
requisite certificate to the Rent Board on 19 September
2000.
Having received no reply, the legal practitioner submitted another
application on 6 December 2000. Again, he received no
reply. In
both applications it was made clear that the property was required
for Goven’s personal use.





However,
about a year later, on 7 November 2001, Goven’s legal practitioner
received a letter from the Ministry of Local Government,
Public Works
and National Housing, the Ministry responsible for the appointment
and functioning of the Rent Board, informing him
that the Chairman of
the Rent Board had retired and that as soon as a new Chairman was
appointed he (the legal practitioner) would
be informed.






Nevertheless, Goven’s legal
practitioner subsequently filed a court application in the High Court
against the Chairman of the
Rent Board and the Minister of Local
Government, Public Works and National Housing, seeking,
inter
alia
, an order
directing the Chairman of the Rent Board to determine Goven’s
application for a certificate of ejectment filed with the
Rent Board
in September 2000. However, there is nothing in the papers before
this Court indicating whether or not when the court
application was
filed a new Chairman of the Rent Board had been appointed.






The
court application was not opposed, and on 19 December 2001, Goven was
granted the following order:






“1. The
first respondent is hereby directed to determine the applicant’s
application for a certificate of ejectment filed on the
19
th
September 2000, within seven (7) days of service of this order.






2. Should
the first respondent fail to comply with paragraph 1 of this Order,
the applicant is granted leave to approach this Honourable
Court for
relief without further notice or recourse to the Rent Board.





3. …”









When the Rent Board did not
comply with the order set out above, Goven’s legal practitioner,
acting on behalf of his client, filed
a court application in the High
Court against Matambanadzo seeking her eviction from the property.
Matambanadzo opposed that application
and filed a counter-application
in which she sought the rescission of the order granted on 19
December 2001, directing the Rent Board
to determine Goven’s
application for a certificate of ejectment within seven days, and
providing that if the Rent Board failed
to do that Goven would be
entitled to approach the High Court for relief.






On 2 October 2002, the learned
judge in the court
a
quo
granted Goven’s
application for Matambanadzo’s eviction, but dismissed
Matambanadzo’s counter-application. Aggrieved by that
result,
Matambanadzo appealed to this Court.







Two main issues arise for
determination in this appeal. The first is whether Goven’s
application for Matambanadzo’s eviction
was properly granted, and
the second is whether Matambanadzo had the requisite
locus
standi in judicio
to
seek the rescission of the order granted on 19 December 2001. I
shall deal with the two issues in turn.






Before
determining the first issue, I would like to set out the relevant
provisions of subsections (2) and (4) of s 30 of the Regulations.

They read as follows:






“(2) Subject
to the provisions of this section,
no
order for the recovery of possession of a dwelling or for the
ejectment of a lessee therefrom
,
which is based on the fact of the lease having expired, either by
effluxion of time or in consequence of notice duly given by the
lessor,
shall be made
by any court
so long
as the lessee continues to pay the rent due within seven days of due
date and performs the other conditions of the lease,
unless, in
addition -






(a)
– (b) …; or






(c) the lessor has given the
lessee not less than two months’ written notice to vacate the
dwelling on the ground that the dwelling
is required -







(i) by the owner; or






(ii) where the lessee is a
sublessee, by the person letting the dwelling to the sublessee;






for his personal residential
occupation or the personal occupation of his parent, child or
employee; or






(d) the lessor has given the
lessee not less than two months’ written notice to vacate the
dwelling on the ground that the dwelling
is required for the purpose
of a reconstruction or rebuilding scheme, and the nature of such
reconstruction or rebuilding would preclude
human habitation; or






(e) …





(3)…






(4) No
order for the ejectment of a lessee from a dwelling shall be made on
the grounds referred to in paragraph (c) or (d) of subsection
(2)
unless the appropriate board has,

on the application of the lessor,
issued
a certificate
to the
effect that the requirement that the lessee vacate the dwelling is
fair and reasonable, and the date specified in the certificate
for
the vacation of the dwelling has passed.” (emphasis added)










I now wish to deal with the
first issue, which is whether the eviction order was properly
granted. I have no doubt in my mind
that in granting the eviction
order the learned judge erred. I say so because in order to succeed
in his application for Matambanadzo’s
eviction, Goven ought to have
produced a certificate from the Rent Board to the effect that the
requirement that Matambanadzo vacate
the property was fair and
reasonable. As Goven did not produce such a certificate, that
should have been the end of the matter.





It
is clear from the provisions of s 30(4) of the Regulations set out
above that the certificate is a prerequisite to the granting
of the
eviction order.






Thus, in Fletcher
v Three Edmunds (Pvt) Ltd

1998 (1) ZLR 257 (S), at 261G-262A, GUBBAY CJ, commented on
subsection (4) of s 30 of the Regulations as follows:







“… subs (4) prohibits in
express wording an order for ejectment on the grounds referred to in
paras (c) or (d) unless the appropriate
board issues a certificate.”









In the circumstances, the order
sought by Goven and subsequently granted on 19 December 2001, to the
effect that if the Rent Board
failed to determine Goven’s
application within seven days Goven could approach the High Court for
relief without further recourse
to the Rent Board, was misconceived.
That is so because when considering an application for the eviction
of a statutory tenant,
which Matambanadzo is, on the grounds set out
in s 30(2)(c) or (d) of the Regulations, the High Court does not have
the power to
grant an eviction order unless the Rent Board has issued
the requisite certificate.






I now turn to the second issue,
which is whether Matambanadzo had the
locus
standi in judicio
to
seek the rescission of the order granted on 19 December 2001. I
think she had.






Her
counter-application for the rescission of the said order was based on
the provisions of r. 449(1)(a) of the High Court Rules,
1971 (“the
Rules”) which reads as follows:






“The
court or a judge may, in addition to any other power it or he may
have,
mero
motu
or upon the
application of any party affected, correct, rescind or vary any
judgment or order -







(a) that was erroneously sought
or erroneously granted in the absence of any party affected thereby;”









It is interesting to note that
this Rule is identical to r. 42(1)(a) of the Uniform Rules of Court
in South Africa which reads as
follows:






“The
court may, in addition to any other powers it may have,
mero
motu
or upon the
application of any party affected, rescind or vary:







(a) an order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby …”









Commenting on the purpose of
Rule 42(1) in
Theron
N.O. v United Democratic Front and Ors

1984 (2) SA 532 (C) at 536D-F, VIVIER J said the following:







“Rule 42(1) entitles any party
affected by a judgment or order erroneously sought or granted in his
absence, to apply to have it rescinded.
It is a procedural step
designed to correct an irregularity and to restore the parties to the
position they were in before the
order was granted. The Court's
concern at this stage is with the existence of an order or judgment
granted in error in the applicant's
absence and, in my view, it
certainly cannot be said that the question whether such an order
should be allowed to stand is of academic
interest only."









I entirely agree with these
comments. In my view, they apply to Rule 449(1)(a) of the High
Court Rules with equal force.






The issue which I now wish to
consider is what the applicant for an order rescinding a judgment or
court order ought to show in
order to establish that he has the
requisite
locus standi
in judicio
. That
question was answered by CORBETT J, as he then was, in
United
Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd &
Anor
, 1972 (4) SA 409
(c) at 415 A-C, as follows:







“In
my opinion, an applicant for an order setting aside or varying a
judgment or order of Court must show, in order to establish
locus
standi
, that he has an
interest in the subject-matter of the judgment or order sufficiently
direct and substantial to have entitled him
to intervene in the
original application upon which the judgment was given or order
granted.”










I entirely agree with the
learned judge, and that is the test which I shall apply in
considering whether Matambanadzo had the requisite
locus
standi
to seek the
rescission of the order granted on 19 December 2001.







Applying that test, I am
satisfied that she had the requisite
locus
standi
. In my view,
she had a direct and substantial interest in the subject-matter of
the order which would have entitled her to intervene
in the original
application in which the order was granted.






I
say so because the order sought by Goven and later granted on 19
December 2001 provided that if the Rent Board did not determine
his
application within seven days, Goven could approach the High Court
for relief (i.e. Matambanadzo’s eviction) without further
recourse
to the Rent Board. The effect of that order, as averred by
Matambanadzo in her affidavit, was the removal of the protection
granted to her as a statutory tenant by s 30(4) of the Regulations.
She is undoubtedly correct, and she would have been entitled
to
intervene in the original application for that reason.






In my view, it follows that the
order in question was erroneously sought and granted in
Matambanadzo’s absence, and that the learned
judge in the court
a
quo
ought to have
granted the counter-application.






In
the circumstances, the following order is made:






1. The appeal is allowed with
costs.



2. The order of the court a
quo
is set aside and
the following is substituted:



“(a) The application is
dismissed with costs.



(b) The counter-application is
granted with costs.”

















CHIDYAUSIKU
CJ: I agree.

















CHEDA
JA: I agree.



















Hussein Ranchod & Co,
appellant's legal
practitioners


Ahmed
& Ziyambi
,
respondent's legal practitioners